The applicant sought to bring an action to challenge new rules on approval of export credit guarantees. The company was non-profit and founded to support investigation of bribery. It had applied for a protected costs order to support the application, and now appealed its refusal.
Held: The court restated the practice on the making of a protected costs order. PCOs can be harnessed in cases of general public importance where it is in the public interest for the courts to review the legality of novel acts by the executive in a context where it is unreasonable to expect that anyone would be willing to bear the financial risks inherent in a challenge. The court restated the governing principles: ‘1. A protective costs order may be made at any stage of the proceedings, on such conditions as the court thinks fit, provided that the court is satisfied that: i) The issues raised are of general public importance; ii) The public interest requires that those issues should be resolved; iii) The applicant has no private interest in the outcome of the case; iv) Having regard to the financial resources of the applicant and the respondent(s) and to the amount of costs that are likely to be involved it is fair and just to make the order; v) If the order is not made the applicant will probably discontinue the proceedings and will be acting reasonably in so doing. 2. If those acting for the applicant are doing so pro bono this will be likely to enhance the merits of the application for a PCO. 3. It is for the court, in its discretion, to decide whether it is fair and just to make the order in the light of the considerations set out above. ‘
Judges:
Lord Phillips Master Of The Rolls
Citations:
[2005] 1 WLR 2600, [2005] EWCA Civ 192, Times 07-Mar-2005, [2005] CP Rep 28, [2005] ACD 100, [2005] 4 All ER 1, [2005] 3 Costs LR 455
Links:
Statutes:
Supreme Courts Act 1981 51, Civil Procedure Rules 43 48
Jurisdiction:
England and Wales
Citing:
Cited – McDonald and Others v Horn and Others CA 8-Aug-1994
A court may make a pre-emptive award of costs to pension fund members who wished to sue the trustees. Hoffmann LJ said: ‘if one looks at the economic relationships involved, there does seem to me to be a compelling analogy between a minority . .
Cited – King v Telegraph Group Ltd CA 18-May-2004
The defendant appealed against interim costs orders made in the claim against it for defamation.
Held: The general power of cost capping measures available to courts were available also in defamation proceedings. The claimant was being . .
Cited – British Columbia (Minister of Forests) v Okanagan Indian Band 2003
(Supreme Court of Canada) A challenge was to be made by Indian Bands to a prohibition on logging on their lands without prior authorisation. They asserted aboriginal title to the land in question and complained of a breach of their constitutionally . .
Cited – Ritter v Godfrey CA 1920
The trial judge had refused to award costs to a successful defendant in a clinical negligence action. He was mainly influenced in this regard by the attitude the defendant had adopted in response to a letter before action, which, in the words of the . .
Cited – Regina v Lord Chancellor’s Department ex parte Child Poverty Action Group Admn 6-Feb-1998
The claimant sought an order with regard to its costs in an anticipated application to the court. The application was refused. Requests in a public interest action for an advance order for costs could only be awarded in very exceptional . .
Cited – In re Beddoe, Downes v Cottam CA 1893
In case of doubt as to the desirability of the intended proceedings (whether as plaintiff or defendant), trustees may apply to the court for directions. This will protect the trustees from adverse costs orders. If given leave to sue or defend by the . .
Cited – In Re Axa Equity and Law Life Assurance Society Plc; In Re Axa Sun Life Plc ChD 19-Dec-2000
A policyholder in a mutual life insurance company who sought to oppose a proposed re-organisation was entitled to a pre-emptive order for his costs. His position was akin to that of a minority shareholder in a company undergoing a similar proposal, . .
Cited – Steele Ford and Newton v Crown Prosecution Service (No.2) HL 1993
The House considered the court’s jurisdiction to award costs out of central funds.
Held: In this case there was no such power, but: ‘still more important, in the present context, is the special constitutional convention which jealously . .
Cited – Wallersteiner v Moir (No 2) CA 1975
The court was asked whether Moir would be entitled to legal aid to bring a derivative action on behalf of a company against its majority shareholder.
Held: A minority shareholder bringing a derivative action on behalf of a company could obtain . .
Cited – Davies v- Eli Lilley and Co CA 1987
The court upheld an order made by Hirst J in the Opren litigation to the effect that the 1500 plaintiffs should contribute rateably to the costs incurred by the legally aided lead plaintiff in a test action. Order 62 Rule 3(3) was concerned with the . .
Cited – Gojkovic v Gojkovic (No 2) CA 1-Apr-1991
In ancillary relief proceedings, the husband had not made frank disclosure of his assets. The final Calderbank offer of andpound;600,000 was made only the day before the substantive hearing. The offer was rejected. The judge awarded the wife a lump . .
Cited – C v FC (Children Proceedings: Costs) FD 2004
Practice in the Family Division has departed from the ‘costs follow the event’ principle in significant respects. The court brought together recent cases on this topic. . .
Cited – Keller v Keller and Legal Aid Board CA 21-Oct-1994
The standard practice of not awarding costs in children cases overrides the possibility of making a hardship order from Landlord. Costs orders are unusual in custody disputes and no order was to be made against the Legal Aid Board in favour of an . .
Cited – Sutton London Borough Council v Davis (Number 2) FD 8-Jul-1994
The local authority had refused to register a childminder, who successfully appealed to the magistrates, who awarded costs in her favour. The local authority appealed against the costs order. In doing so the authority urged the court to apply, by . .
Cited – R v R (Costs: Child Case); In re R (a Minor) CA 5-Dec-1996
The court analysed the reasons why costs orders were generally not made in cases involving children. . .
Cited – Regina on the Application of Davies (No 2) v HM Deputy Coroner for Birmingham CA 27-Feb-2004
The claimant appealed against a costs order. She had previously appealed against an order of the High Court on her application for judicial review of the inquest held by the respondent.
Held: The coroner, and others in a similar position . .
Cited – Chief Constable of North Wales Police v Evans 2-Jan-1982
. .
Cited – Liversidge v Sir John Anderson HL 3-Nov-1941
The plaintiff sought damages for false imprisonment. The Secretary of State had refused to disclose certain documents. The question was as to the need for the defendant to justify the use of his powers by disclosing the documents.
Held: The . .
Cited – New Zealand Maori Council v Attorney-General of New Zealand PC 1994
The board declined to make an order for costs against the unsuccessful appellants where they were not pursuing the proceedings out of any motive of private gain, but ‘in the interests of taonga which is an important part of the heritage of New . .
Cited – Regina v Inland Revenue Commissioners, ex parte the National Federation of Self-Employed and Small Businesses Ltd HL 9-Apr-1981
Limitations on HMRC discretion on investigation
The Commissioners had been concerned at tax evasion of up to 1 million pounds a year by casual workers employed in Fleet Street. They agreed with the employers and unions to collect tax in the future, but that they would not pursue those who had . .
Cited – Regina v Her Majesty’s Coroner for Inner London North ex parte Peter Francis Touche CA 21-Mar-2001
The applicant’s wife had died of a cerebral haemorrhage, the result of severe hypertension, possibly secondary to eclampsia. The coroner decided not to hold an inquest. The issue raised was whether he was required to hold an inquest because there . .
Cited – Regina v Merthyr Tydfil Crown Court, ex parte Chief Constable Dyfed Powys Police QBD 9-Nov-1998
The Chief Constable, on good grounds, objected to the transfer of a justices’ on-licence to a Mrs W. Mrs W appealed and the Chief Constable, having objected to the transfer, became a respondent. On the appeal Mrs W contended that, since the conduct . .
Cited – Regina v Secretary of State for the Environment, ex parte Rose Theatre Trust Co QBD 1990
The remains of an ancient theatre had been discovered during the development of a site. The respondent declined to schedule the building as a monument, saying a balance had to be found between preservation and the need to ensure the prosperity of . .
Cited – Regina v Secretary of State for Foreign and Commonwealth Affairs ex parte World Development Movement Ltd QBD 1995
A British consortium looked for assistance in providing a hydro-electric project on the Pergau river. One interested government department advised that it was not economical and an abuse of the overseas aid programme, but the respondent decided to . .
Cited – Bolton Metropolitan District Council and Others v Secretary of State for the Environment and Others No 2 HL 17-Jul-1995
The applicants had been successful in their appeal against a refusal of planning permission. The Secretary of State had awarded himself and the applicants their costs against the Council. The Council asked the House to give guidance on the . .
Cited – Regina v Secretary of State for the Environment ex parte Shelter 1997
The court refused to make a costs order against Shelter on the grounds that: (i) there were already pending before the court a sequence of individual cases raising precisely the same issue; (ii) the legal question raised was of genuine public . .
Cited – Coventry City Council v Finnie and Another QBD 2-May-1996
No undertaking for damages was to be required of a Local Authority exercising a statutory duty. The grant of an injunction in favour of a local authority performing law enforcement duties did not necessarily carry with it a cross-undertaking on . .
Cited – Hodgson and others v Imperial Tobacco Limited Gallagher Limited etc CA 12-Feb-1998
A large number of plaintiffs brought actions against the defendants, three tobacco companies, claiming damages for personal injuries by reason of cancer which they claimed was caused by smoking cigarettes manufactured by the defendants. A hearing . .
Cited – Regina v Hammersmith and Fulham London Borough Council Ex Parte Trustees of the Council for the Protection of Rural England QBD 26-Oct-1999
The authority gave permission for a new shopping centre up to 600,000 sq ft as an urban project. The Trustees sought that the permission be set aside since the council had not undertaken an environmental impact assessment, and under the EC Treaty . .
Cited – The Campaign for Nuclear Disarmament v The Prime Minister of the United Kingdom,The Secretary of State for Foreign and Commonwealth Affairs, The Secretary of State for Defence (2) Admn 5-Dec-2002
The claimants intended to seek a judicial review requesting an interpretation of a resolution of the United Nations Security Council. They sought first, an order pre-emptively to limit their liability for costs.
Held: To make such a protective . .
Cited – Jones v Coxeter 1742
Lord Hardwicke said: ‘The giving of costs in equity is entirely discretionary and is not at all conformable to the rule at law.’ . .
Cited – Corporation of Burford v Lenthall 1743
The court considered how the Courts of Equity had dealt with orders for costs: ‘Courts of Equity have in all cases done it not from any authority but from conscience and arbitrio boni viri, as to the satisfaction on one side or other on account of . .
Cited – Andrews v Barnes CA 12-Jun-1888
The parish vicar and his churchwardens brought an action to recover a small sum paid to the members of a local committee for charitable purposes, saying the gift had been made subject to a condition which it proved impossible to fulfil.
Held: . .
Cited – Refugee Legal Centre, Regina (on the Application of) v Secretary of State for the Home Department CA 16-Sep-2004
The court considered whether a protective costs order should be granted in favour of the claimants in relation to a substantive appeal in a matter in which they had been protected by an undertaking by the Home Office not to seek an order for costs . .
Cited – Musa King v Telegraph Group Ltd SCCO 18-May-2004
. .
Cited – Oshlack v Richmond River Council 1998
(High Court of Australia) The appellant had been concerned about the habitat of the endangered Koala, and complained about the absence of any fauna impact statement before a planning consent to development was granted. The judge at first instance . .
Cited – British Columbia (Minister of Forests) v Okanagan Indian Band 2003
(Supreme Court of Canada) A challenge was to be made by Indian Bands to a prohibition on logging on their lands without prior authorisation. They asserted aboriginal title to the land in question and complained of a breach of their constitutionally . .
Cited – Village Residents’ Association Ltd v An Bord Pleanala (No 2) 2000
(Irish High Court) The court faced the first application for a Protective Costs Order (PCO) in the High Court of Ireland.
Held: There was jurisdiction to make such an order, but it was difficult in the abstract to identify the type or types of . .
Cited – Regina v Secretary of State for the Home Department, Ex Parte Salem HL 3-Mar-1999
The House of Lords has the power to hear a case where the parties have in effect settled and there remains no lis at issue, but the House will not hear such an academic case where no general issue of importance is at stake, or the facts are . .
Cited by:
Cited – Goodson v HM Coroner for Bedfordshire and Luton and Another (No 2) CA 12-Oct-2005
The applicant intended to appeal refusal of her challenge to the verdict of the coroner. For the first time at appeal she sought a protective costs order.
Held: The Corner House case established that a request for a protective costs order . .
Cited – Wilkinson v Kitzinger and Another FD 12-Apr-2006
The petitioner intended to seek a declaration as to her marital status. She and the respondent had married in a civil ceremony in British Columbia in 2003. She sought a declaration of incompatibility with regard to section 11(3) of the 1973 Act so . .
Cited – Compton, Regina (on the Application of) v Wiltshire Primary Care Trust Admn 26-Nov-2007
Applicaton for protective costs order. The court considered the report of a working group on such orders which said that to be suitable for a PCO a case must be a ‘public interest case’, but found it difficult to define what sort of case fell within . .
Cited – Buglife – The Invertebrate Conservation Trust, Regina (on the Application of) v Thurrock Thames Gateway Development Corp CA 4-Nov-2008
The court considered an application for a protective costs order in judicial review proceedings in environmental law cases.
Held: The central decision was Corner House Research, but that was to be applied purposively and not rigidly. It was . .
Cited – E, Regina (On the Application of) v Governing Body of JFS and Another SC 14-Oct-2009
The claimant had successfully challenged the policy of the school as racially discriminatory. He now sought an ancillary order that the respondents should not be allowed to request their costs from the defendant’s appeal whatever the outcome, the . .
Cited – Eweida v British Airways plc CA 16-Oct-2009
Appeal against refusal of protective costs order. The claimant said that she had been discriminated against when she was refused permission to wear her christian cross with her uniform. . .
Cited – Morgan and Another v Hinton Organics (Wessex) Ltd CA 2-Mar-2009
The claimants had alleged that smells from a composting site near their homes constituted a private nuisance. Following the discharge of an interim injunction, Judge Seymour ordered the claimants to pay the costs of the injunction proceedings. The . .
Cited – Leeds Group Plc v Leeds City Council ChD 21-Apr-2010
Application had been made to the defendant to register as a common land belonging in part to the claimant and in part to the defendant. The claimant objected to the registration. The defendant did not. . .
Cited – Edwards and Another, Regina (on The Application of) v Environment Agency and Others SC 15-Dec-2010
Clarification was sought of the costs principles applicable on an application to the House of Lords. The paying party said that it was a requirement of the 1998 Convention under which the application fell, that a remedy should not be available only . .
Cited – London Borough of Camden v The Parking Adjudicator and Others Admn 18-Feb-2011
The council appealed after parking adjudicators allowed four appeals where the council had imposed a surcharge on the payment of civil parking penalties where payment was made by credit card. . .
Cited – Austin and Others v Miller Argent (South Wales) Ltd CA 29-Jul-2011
The claimants appealed against refusal of a Group Litigation Order (GLO). Over 500 parties wished to claim in nuisance caused by open cast mining operations conducted by the defendants.
Held: The appeals failed. The making of a GLO is a matter . .
Lists of cited by and citing cases may be incomplete.
Costs, Litigation Practice
Leading Case
Updated: 04 May 2022; Ref: scu.223080